In a recent VCAT matter Clause:1 represented a client with a property in Hobsons Bay affected by Design and Development Overlay Schedule 4 (DDO4). DDO4 is similar in its intent to a DDO1 contained in the Bayside planning scheme. The interesting thing about both of these DDOs is that they specify maximum height controls in terms of the number of storeys not in metres.
Each of the DDOs specify their heights controls as follows.
Hobsons Bay DDO4:
A permit may not be granted to construct a building or to construct or carry out works exceeding a height of two storeys.
Bayside DDO1
Building height must not exceed 2 storeys…
Although at first glance this method of height control seems pretty straight forward it does conger some interesting questions. Is a mezzanine level a storey? What about attics and basements? What about split levels? And if a building height cannot ‘exceed’ two storeys can you have roof top decks, chimneys, air conditioning units or other structures above the second storey?
The word storey is defined in Clause 72 of the Victorian Planning Provisions as follows:
That part of a building between floor levels. If there is no floor above, it is the part between the floor level and ceiling. It may include an attic, basement, built over car parking area, and mezzanine.
The Tribunal has dealt with this issue on multiple occasions. The principles of interpreting these type of controls were set down by Justice Morris (previous President of the Planning and Environment List) in Poci Brothers Pty Ltd v Bayside CC [2003] VCAT 1884. In the Poci case and subsequent decisions VCAT has maintained the following principles when interpreting a height control expressed in the number of storeys:
1. Building height should not be assessed by simply counting every possible level or storey and reaching a conclusion by addition, but by approaching the task in a practical and commonsense manner.
2. The way to characterise the number of storeys a building has for the purpose of interpreting a height control of this nature is by observation of the external built form and by reference to the purpose of the control.
For permit applicants this essentially means if your building looks like a two storey building and meets the objectives of the relevant DDO (ie to maintain the low level built form common to the area) it will usually pass the ‘two storey’ test regardless of the number of mezzanines, attics, basements or split levels within that form.
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Last updated 020309